Gupta, J. - (1.) This appeal by certificate under Article 133 (1) (a) of the Constitution granted by the Patna High Court arises out of a proceedings under Section 3 of the Kosi Area (Restoration of Lands to Raiyats) Act, 1951 (thereinafter referred to as the Act). By the order challenged in this appeal the High Court allowed a writ petition filed by the first respondent setting aside an appellate order under Section 16 and restoring the original order passed on an application under Section 3 of the Act. To appreciate the nature of the dispute between the parties, it would be more convenient to refer to the relevant provisions of the Act before we turn to the facts of the case.
(2.) The Act was passed, as its long title and preamble show to provide for "the restoration to former raiyats of certain lands which were sold for arrears of rent or from which they were ejected for arrears of rent or which were treated as abandoned, between the 1 st day of January, 1939, and the 31st day of December,1950, in the absence of the raiyats due to floods in the Kosi River." Section 3 of the Act is in these terms:" Steps to be taken for restoration of land to raiyats.- If the holding of a raiyat or portion thereof was sold in execution of a decree for arrears of rent or if a raiyat was ejected from a holding or portion thereof in execution of decree passed under sub-section (2) of section 66 of the Bihar Tenancy Act, 1885, or if the holding of a raiyat or portion thereof was treated as abandoned under Section 87 of the said Act at any time between the 1 st day of January, 1939, and the 31st day of December, 1950, and is in the possession of the landlord or any other person the Collector may, if he thinks fit, of his own motion or otherwise, take steps for the restoration of such holding or portion thereof to the said raiyat." "Collector" is defined in Section 2(a) as the Collector of a district or any other officer appointed by the State Government to discharge any of the functions of a Collector under this Act. Section 4 requires the Collector to give notice of the proceeding under Section 3 to the raiyat, the landlord, and all other persons interested, in the holding or portion there of forming the subject-matter of the proceeding so as to enable them to file their objections if any. Clauses (a) and (b) of Section 5(1) state the grounds on which objection may be raised to the restoration asked for. Section 5(1) (a) which is relevant for the present purpose reads as follows: "5. Objection to the restoration of holding and manner of disposal:- (1) On the date fixed in the notice, the landlord or any other person may appear and object to the restoration of the holding or portion thereof on any one or more of the following grounds, namely:- (a) that he has constructed any building or other structure of a permanent nature or planted any garden on the holding or any portion thereof before the date of the commencement of this Act and that such building, structure or garden is of such a value that the restoration of the land covered by such building, structure or garden will be unfair and" Sec, 5(2) provides that if after inquiring into the objections the Collector finds that the building or structure constructed or the garden laid on the land of which restoration is sought is of such value that the restoration will be unfair, the Collector shall drop the proceedings entirely where the building, structure or garden covers the entire area in question, and where only a part of the land is so covered, only partly, in so far as they relate to the site of such building, structure or garden. Section 7 lays down the procedure to be followed by the Collector if the proceedings are not dropped entirely. The Collector is to determine the land liable to be restored to the raiyat and the amount payable by him for the restoration specifying the person to whom the amount is payable; the amount to be determined is the cost of improvement, if any effected on the land which the Collector may deem fair and equitable. The Collector shall then ascertain whether the raiyat desires to deposit the amount in one lump sum or in instalments if the raiyat desires to pay the amount in instalments. the Collector will determine the number and amount of such instalments having regard to the means and circumstances of the raiyat. But the instalments shall be payable within a period not exceeding five years. As soon as possible after the entire amount or the amount of the first instalment, as the case may be, is deposited with the Collector, the Collector shall direct the raiyat to be put in possession of the land. Sec. 13 states that subject to appeal under Section 16, orders passed by the Collector under the Act shall be final and bars the jurisdiction of civil courts to vary or set aside any order passed under this Act. Section 16 provides an appeal from every order passed under this Act. (a) when the order was made by the Collector of a District. to the Commissioner, and (b) when the order was made by any officer other than the Collector of the District, to the Collector of the District or to any officer specially empowered by the State Government by a notification to hear such appeals. The section also provides that the decision of the Commissioner or the Collector of the District or any officer so empowered shall be final.
(3.) The facts of this case are as follows. . The land in dispute was sold on July 11, 1945 in execution of a decree for arrears of rent. The auction- purchaser, one Tilakdhari Lal, obtained delivery of possession and remained in possession for a little over two years before selling the land to the appellant Sushila Devi on December 1, 1948. On October 27. 1957 the first respondent applied for restoration of the land under Section 3 of the Act before the Circle Officer Birpur, who was appointed by the Government to discharge the functions of a Collector under the Act. According to the appellant, she spent a large sum of money on reclamation of the land and building structures on a part of it. On February 17, 1958 the Circle Officer made an order for restoration in respect of the holding excluding an area of 9.25 acres on which the appellant had built structures. In terms of this order the first respondent was to pay compensation of Rs. 20.000/- to the appellant in three annual instalments of Rs. 10,000/-, Rs. 5,000/-, and Rupees 5.000/-, the first installment was to have been paid. between March 1, 1958 and June 1, 1958. The order added that if the first instalment was not paid within the specified period, the applicant would "lose the benefit of the order of restoration." The first respondent did not pay the instalment within the time allowed, and on September 11, 1958 preferred an appeal to the Collector against ' the order of the Circle Officer. The appeal was dismissed for default. The first respondent threafter filed a revision petition before the Commissioner though the Act did not provide for a revision against an appellate order passed by the Collector of the District. The Commissioner however set aside the order of the Collector and remanded the appeal for rehearing. The appellant questioned the correctness of the Commissioner's order by filing a writ petition before the Patna High Court which was allowed by the High Court on June 30, .1964 and the order of the Commissioner was quashed. The High Court observed in its order that it did not think that the decision of the Circle Officer was arbitrary or defective in law. The first respondent obtained a certificate under Article 133 (1) of the Constitution to appeal to this Court against that order of the High Court, but the appeal was dismissed for non-prosecution on July 9. 1965.;